Nuclear Option: The Knights Who'll Say 'Nay'

By RonK, Seattle

It's been suggested that Frist must not have the votes to execute the Nuclear Option -- otherwise he would have already pulled the trigger. I do not share this view. He may have them -- today -- but he certainly faces resistance to using them. And while he works through required pre-launch protocol, he stands to lose votes in unexpected quarters, for unanticipated reasons.

There's a sizable Don't Go There faction. Many committed Ayes would rather it didn't come to this. If it comes, they'd rather it didn't come on their watch. They'd rather capitalize on the threat than commit the act. They'd rather somebody settled. They'd rather be sailing.

The Senate is a deliberative body, whose rules and traditions are biased in favor of painstaking examination of far-flung implications. For all the loose chatter, that examination hasn't occurred yet ... but it will. The Don't Go There's will demand it.

The Option is a gambit only institutional lightweights can take lightly. Lightweights may have no idea how big the stakes are, but they'll smell it in the air when it gets close. Even the airiest will have their depths plumbed and horizons broadened when The Option goes into long hours of deliberation, debate, history, bargaining, search for outs, and further deliberation.

And that's not all.

Frist has more than his moderates to worry about.

First, the "old bull" institutionalists. Debate will raise troubling issues of history, legacy, principle and conscience. (Young institutionalists -- "book learned" conservatives who read the Federalist Papers but never grasped the implications -- may also emerge.)

Second, Reid's counterthreat. Every member has a topical ox or two that could get gored in near-term reprisals.

Third, the long haul. Senate careers are longer than Presidential ones, and every senator is a player -- under today's rules. Few can count on spending the rest of their days in the Majority, and none has any appetite for the living death that befalls Minority members in the majoritarian House.

Finally, the threat of majoritarian rule. The proposed maneuver cannot be confined to judicial confirmations. It fundamentally changes the character of the Senate in ways that affect every member of the Majority.

Every senator (and his or her state) belongs to one or more situational minorities. The rules vest power in every minor faction -- even a faction of one -- on every issue. Every alienated vote could be the make-or-break vote on cloture, now or later, on this issue or that or a triple-nuanced surrogate horsetrade. This works to the immense advantage of small states and odd states -- all the geographic, demographic, cultural or industrial outliers.

In a post-Nuclear landscape, every situational minority loses a large share of its leverage with respect to the situational majority.

If I were shopping for flips against The Option, I might shop the small states -- those with a powerless 1 or 2 seats in the House, but equal and indispensable representation in the Senate.

One-seaters with GOP senators are AK (Murkowski, Stevens), MT (Burns), SD (the recently-burned Thune), and WY (Thomas, Enzi).

Two-seaters are ID (Craig, Crapo), ME (Snowe, Collins), NH (Sununu, Gregg), RI (Chafee).

I might remind each of these senators of their beloved home state's special character and unique history. I might remind them that a majoritarian Senate leaves their state at a comparative disadvantage from now to the end of time. I might remind each of some particular case in which they (or their predecessors) moved something or stopped something only by working their disproportionate will in the Senate. And I might share these thoughts with their home-state broadcasters, editors and publishers.

I might take a similar tack with poor states like AL (Sessions, Shelby) and MS (Lott, Cochran), or cultural outliers like UT (Hatch, Bennett), LA (Vitter), and even Kansas (Brownback, Roberts).

In light of AK's multiple-outlier status, I'd never let up on Ted Stevens. Are three or four eccentric judges worth the impact on Alaska's future?

I might even do the calculus on larger aggregates. Take the farm states, for instance. How much of their ability to move Ethanol results from their power to stop anything that moves without Ethanol? How much stopping power do they have left in a majoritarian Senate?

And then I might have a talk with Chuck Hagel. He's destined to rise in leadership stature. Will he exercise leadership in the august tradition of the Senate? Or in the kids-playing-with-dynamite tradition of Frist and company?

And there are a couple more things I'd be prepared to do ... but these will do, for a start.

Frist is no chess master, and he's stumbling into playing a high-stakes simultaneous exhibition match. The Nuclear Option, Bolton, BRAC, Social Security, Energy, and several lower-visibility issues all demand finesse in marshaling difficult GOP votes ... the same votes, in most cases. I concur in Schmitt's assessment that Frist doesn't know where his votes are. With a net advantage in material (and an arguable disadvantage in skill), a smart player would look for a simplifying exchange -- taking complications off the table. Frist appears determined to do just the opposite.

Comments

[DemFromCT]

Glad you put this up. Frist is no Jedi Master, and there are any number of ways that he could screw up.

[Kagro X]

I might remind them that a majoritarian Senate leaves their state at a comparative disadvantage from now to the end of time.

Ooh. Aah.

The nuclear option kills the delicate latticework of bicameralism, designed to keep small Congressional delegations from being swept aside by the large. The coasts eat the heartland.

[DHinMI]

In their public comments at least, there are plenty of people, for reasons based in institutional practice or home-state needs, who have been more docile than I would have thought. I figured Stevens would be reluctant to launch, and he may in fact be one of the people behind the scenes trying to keep the option in the silo. But publicly at least, he's committed his support. Lindsay Graham fits the younger type who could figure it out, but appears to have committed to supporting Frist. I though Dominici, like Stevens and other long-timers, might not want to launch, but he has also gone public in support. And Hatch knows as well as anyone how the current system can be manipulated by both majorities and minorities, and he respects the process of legislating a lot more than most of the ultras.

Of the people you mention, in no particular order, the ones I think are most likely to oppose going nuclear are Chaffee, McCain, Hagel and Snowe. The next tier would be Murkowski, Specter, Sununnu, DeWine and Collins. The wildcards who I wouldn't be shocked to see say "no nukes" would be, to varying degrees of liklihood, Shelby, Lott, Cochrane, Voinovich and Stevens. I really don't know about Roberts, Thune, Burns, Bennett or Hatch (although I could see Hatch fighting against it behind closed doors). And the ones I would be shocked to see buck their party leadership are Gregg, Thomas, Enzi, Craig, Crapo, Brownback, Sessions and Vitter.

[DemFromCT]

Chafee, McCain and Snowe are safe bets. I'd be delighted to be wrong about Hagel. He says the right things, and he should know better, but...

OTOH, I never met a Sununu I'd like, and certainly never one I'd trust.

[RonK, Seattle]

Some of the "impossibles" will remain impossible. But a few may surprise us, and themselves, and Frist.

Many of these are loyal partisans who fully intend to support their leadership ... especially where the vote is presented as a test of party cohesion and staying power, and as all that stands between Bush and lame duckitude.

But even then, Frist's urgency is false urgency. If the neocon era continues, court takeover will run to a favorable conclusion even with the filibuster in place.

And if a new era is in the cards, surviving Republicans need to consider how they will stand in whatever circumstance History serves up next.

Win or lose or rained out, it's hard to construct sequels in which the GOP is glad it played The Option.

Mobilizing home state pressure could be the key. Raise the specter of legislative marginalization with business and civic leaders. They may be Republicans, but they're not all knee-jerk Republicans, they're not without influence, and in the long run they've got more skin in the game than a Thune or a Vitter or a Thomas.

[Steve]

Harry Reid makes the "small state" argument all the time, so this approach will not be news to him. Check out his floor speeches sometime. He is always talking about how great it is that the Senate gives him the same voice as a Senator from a large state. In fact, he made exactly that point in 1995 when he voted against changing the filibuster rules.

[Petey]

It's Ideological, Not Regional

I alternate almost daily on whether I think this is going to pass or not. But on days when I think it won't pass, here's my logic:

The current 60 vote supermajority setup greatly empowers Senators between the 40 yard lines. Unlike in the House, where moderates are mostly powerless, in the Senate, moderates determine what passes.

So weakening the filibuster is a transfer of power from the McCains and Liebermans of the world to the Cornyns and Boxers of the world. When the moment of truth comes, I have trouble seeing enough Republican moderates voluntarily give away their power.

Of course, on the days I think it will pass, I see a different logic trumping the Self-Interest of Moderates logic...

-----

And just to be tiresome, I'll repeat my deeply held belief that the Democrats are profoundly erring in not offering Frist a total end to the filibuster rule in 2009, and then negotiating it down to 2007. I'll repeat my tiresome claim that ten years from now, liberals and progressives will look back on this moment as a golden opportunity, and wonder what the hell were they thinking? How the hell could they have refused to take advantage of that once in a lifetime gift?

-----

And finally, I'll throw out a thought I've been having recently that this battle is actually like efforts to pass a constitutional amendment to ban burning the flag: it doesn't really matter to the Senatorial proponents whether or not it passes, it's just a matter of firing up the base with the fight.

[badger]

Considering RonK's comments about outcomes for the GOP, the same applies to the Dems: if the neocons persist in controlling government, having the filibuster is ultimately going to make very little difference for the Dems, and if the Dems become the majority (as Petey indicates) they're going to regret passing up the opportunity to eliminate the filibuster.

Assuming the players on both sides are rational (big assumption), there has to be something else at stake, and it seems likely that would be Supreme Court vacancies. On the right, Rehnquist and O'Connor (I believe) probably have both wanted out for a while. On the left, Ginsburg and Stevens probably do too (all for age/health reasons).

The interesting question is why neither Rehnquist nor O'Connor has left yet, opening a vacancy for a younger conservative so the balance is at least maintained long into the future, if not enhanced. I can only think of three reasons: embarrassment over Bush v. Gore, they really think Bush is an idiot, or fear of the filibuster (the Dems controlled the Senate for 2 years, and it's remained close ever since).

The GOP has the opportunity to fill 2 to 4 seats on the SC before 2008. With luck (for the GOP), the lefties will be gone before then too, by choice or by circumstance.

That seems like a situation worth fighting over, moreso than a few lower court seats.

[Bill from Dover]

"Third, the long haul. Senate careers are longer than Presidential ones, and every senator is a player -- under today's rules. Few can count on spending the rest of their days in the Majority"

The scary thing is that the Repugs plan on spending the rest of their days in the Majority. Think about it.

[emptywheel]

RonK,

Can you elaborate on what you mean by this:

Every member has a topical ox or two that could get gored in near-term reprisals.

I'm also glad you brought up ethanol. I was thinking as I read this that it'd be nice if Bush's cuts to ag subsidies were on the table this week, just to remind all those agriculture state Senators how nice it is to be able to stamp your foot with some emphasis.

I think the problem with ditching the filibuster, btw, is that the GOP intends to stay in power for good this time (this digby post keeps coming to mind). Don't know how they intend to do it or whether they'll be successful. But I'm not so optimistic we'll get to that period, 20 years from now, when we own both houses of Congress and the White House, without the filibuster.

[Petey]

"I think the problem with ditching the filibuster, btw, is that the GOP intends to stay in power for good this time..."

I'm sure they'd like to stay in power forever, but I don't think that's why they're trying to weaken the filibuster. If that was the case, they'd be trying to eliminate the filibuster completely, instead of restricting it to judges.

Let me expand on my idea above that this is like the efforts to pass a constitutional amendment to ban burning the flag:

The GOP's goal here, as I see it, is entirely political and not substantive. In other words, this is about winning elections, not about changing the nature of the federal judiciary. Bush is already getting 95% of his judges approved. He will already be able to get a quite conservative Supreme Court nominee approved, as long as there is not an inflammatory paper trail.

The crucial thing to understand is that the filibustered nominees were intended to be filibustered.

Karl Rove built his empire by winning judicial races. He understands quite well the way conservative judges can be used as the ultimate wedge issue to polarize the electorate with a majority on his side. Judges keep the focus on social issues instead of economic issues.

And the nuclear option effort is guided by that same blueprint. (There's a nice article in Monday's NYT about how Priscilla Owen is a Rove protege.)

But all of this is a long way of saying that the nuclear option is not part of some larger gameplan about making things easier for the majority with the GOP staying in power forever. It's a short-term electoral ploy, both for Frist's personal ambitions, as well as for Rove's efforts to continue the GOP's electoral win streak. The weakening of overall minority rights in the Senate is just collateral damage.

[emptywheel]

Petey

Have you read the digby post? He looks at a few other gambits the GOP are playing, such as excluding the REAL ID from judicial review, that do seem like moves to keep the GOP in power for good.

[Petey]

As digby notes in that post, "The right has held for decades that judicial review has no constitutional foundation.".

In other words, the right's war on the federal judiciary has been going on since 1937, and has been in a heightened state of hostilities since Earl Warren. It's nothing new, and nothing specific to the post-2001 electoral situation.

[RonK, Seattle]

Steve -- Yes, the "small state" argument is not new ... I've tried to suggest
(1) it doesn't just apply to small states, and
(2) the place to drive it home is at home.

Petey -- Yes, the moderates are one minor faction with much to lose ... but every minor faction (and there are hundreds of them) has much to lose.

badger -- Your calculus makes sense if we assume the "sides" are monolithic. Significantly, they are not.

emptywheel -- For a given one or two or five senators, the "topical ox" may be a major public works project, or a grant funding a research institute at a home-state university, or a regulatory wrinkle that conveniences the home-state governor in the state's implementation of some federal program, or a tax or trade tweak for some home-state industry. Everybody has 'em, and they usually don't line up on party lines.

Petey -- Agreed, this year's nominations are (in part) a Nuclear Wedgie. Your note Rove's background in judicial races. These boys also cut their teeth on direct mail, where segmentation is the name of the game. Tactics that make no apparent sense in the aggregate may make a lot more sense when viewed through this lens.

But there's more to this dangerous game, and the focal objective may be the DC Circuit even more than SCOTUS. Correct, it's been "game on" since 1937 ... but now they sense substantive victory within reach, and substantive opportunity slipping out of reach. Hence, the reckless lunge.